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TMI Blog2003 (9) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... l by the respondent No. 2 by an order dated July 11, 1995. The amount of gross turnover was reduced by Rs. 30,00,000. The claims under section 5(2)(v) and 5(1)(bb) under the Act, 1941 were also allowed. Direction was given to determine the interest afresh. 4.. The suo motu proceeding for revising the appellate order was initiated by the respondent No. 3 by a notice dated September 22, 2000 on the ground of suppression of the sum amounting to Rs. 2,23,62,320. The amount was added with the gross turnover determined in the appeal by the respondent No. 2. The further sum of Rs. 98,745.47 was demanded as tax. A demand notice in form No. 33 under the West Bengal Sales Tax Act, 1994 (hereinafter referred to the Act, 1994 ) was issued. The order passed by the respondent No. 3 on December 13, 2000 is illegal and without jurisdiction which is liable to be set aside. 5.. Affidavit in opposition was filed by the respondent admitting the fact that the notice in form No. 33 was issued erroneously in place of form No. 28. The turnover tax was levied wrongly at 2 per cent instead of 1 per cent. The order passed by the respondent No. 3 is neither illegal nor without jurisdiction, in asmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Deputy Commissioner according the learned lawyer is, unwarranted under law. 10.. On behalf of the respondents, the learned lawyer submits that it is not necessary to mention in the notice the ground for imposition for turnover tax. It is the necessary consequence on the total amount of sales so assessed in the assessment proceeding. It is also submitted that the suo motu revision according to the relevant provisions of the Act, 1941 can be done by the revisional authority. The application filed on behalf of the petitioner is frivolous and mala fide and is liable to be dismissed. 11.. The points for consideration, therefore, are: (a) if the respondent No. 3 can revise the appellate order passed by the respondent No. 2 in suo motu revisional proceeding, and (b) the notice in form No. 33 and imposition of turnover tax is illegal and invalid. 12.. On behalf of the respondents, it is admitted in paragraph 11(VIII) in their affidavit in opposition that the turnover tax at 2 per cent instead of 1 per cent was wrongly levied and the form No. 33 was issued erroneously in place of form No. 28. Therefore, we find that the demand issued in form No. 33 admittedly is unw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order 16.. In order to appreciate the ratio decidendi of Madurai Mills Companies case [1967] 19 STC 144 (SC), it is necessary to reproduce the facts of the case. For the assessment year 1950-51, the assessing officer determined the net turnover more than Rs. 15 crores. For the first time in an appeal, the dealer contended that a sum of rupees more than 1,00,000 was wrongly included in the turnover and Rs. 81546-0-1 which represented the sale proceeds by selling empty drums, were not realised in course of the business. The second contention was rejected but the first one was accepted. A revision, thereafter, was preferred with the objection that the amount of tax of Rs. 6,57,971-4-9 collected by it, could not be included in the taxable turnover. The revision was dismissed with the observation that new contention could not be raised for the first time in an appeal. The Board of Revenue, thereafter, revised the revisional order by including a sum of Rs. 7,74,62,706-1-6 in the net turnover as the amount was wrongly excluded by the assessing authority. The dealer objected to the proposed revision. The objection was overruled and the turnover which was wrongly excluded was include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated December 13, 2000 passed by the learned Deputy Commissioner being unwarranted in law is liable to be set aside. 19.. The learned lawyer for the petitioner referred the decision reported in [1992] 87 STC 43 (WBTT) (Black Diamond Beverages Pvt. Ltd. v. C.T.O., Central Circle) and submitted that the Deputy Commissioner passed his revisional order without application of mind and simply relying on the proposal sent by the assessing authority. It is his further submission that the learned Deputy Commissioner should have given the opportunity to refute the allegation of suppression of sales brought against the petitioner before coming to a proper finding. 20.. On behalf of the respondents, it is submitted that the learned Deputy Commissioner has considered the submission made on behalf of the petitioner and also examined the books of accounts as well as the returns furnished by him. 21.. On going through the impugned order dated December 13, 2000 it appears that the learned Deputy Commissioner had simply gone through the report of the Bureau of Investigation and was prima facie satisfied regarding the allegation of suppression of sale. We, thus find that the learned Deput ..... X X X X Extracts X X X X X X X X Extracts X X X X
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